Does the “Article 50 Challenge” have any merit?

Some Remainers are hopeful. The hope – a high hope – is that this legal challenge could stop or substantially delay Brexit.

The website for the campaign for this case is here and the campaign’s Twitter account is here. Do click and have a look, as in the heated debates on Brexit it is important that things are not misrepresented.

You will see from the campaign’s website that there is a hearing on 12th June 2018, which will be nearly two years after the referendum result and fifteen months since the Article 50 notification was given to the European Union.

The hearing is a renewed application for permission to bring the claim. This means that the claim still has not got off the ground. The first attempt – “on the papers” – did not obtain the court’s permission to bring this sort of “judicial review” claim. Any claim where permission is refused on the papers can be renewed at a oral hearing. That is what is happening in June.

This means that any substantive hearing on the actual merits is still some way off, if permission is granted. Such a hearing may be in June, or it may be some time after. And all this is while the clock is ticking, with the UK to leave the EU by automatic operation of law on 29th March 2019 next year, unless something exceptional happens.

I have not seen the claim form or any of the court papers. So I do not know for certain how the claimants are dealing with the timing issues, or with the procedural point that such claims should normally be brought within three months of the decision (or lack of decision) that the claimant wants the court to review. It seems to me that, regardless of the substantive merits of this challenge, time is against the claim.

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But what if time was not an issue? Would it otherwise be a good claim?

Again I have not seen the court papers. There may be some ingenious and compelling (and it would have to be both) legal arguments made in the claim which mean that the court would grant a remedy, and somehow stop or delay Brexit.

All this post can do is look at the claim from first principles and to see if the basic proposition is sound, or not.

Has the UK not actually decided, in accordance with its constitutional requirements, to leave the EU?

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The starting point is not any UK constitutional text.

(Please note that, contrary to conventional wisdom, the UK does have a constitution, and most of it is written down – in statutes, cases, and books of authority. The UK does not have a codified constitution.)

The starting point is Article 50 of the Treaty on European Union. You can read it here.

The key provision is Article 50(1):

“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

The argument is that the UK has not decided to withdraw from the EU “in accordance with its own constitutional requirements”.

That is to say that at no stage in the legal and political process was there a distinct decision. The referendum was advisory; the statute providing for the notification did not compel the prime minister to exercise it; and the notification was only in respect of an intention for the UK to leave.

At no point, the argument goes, was there a decision: just a lack of decision which was nodded through.

I hope this does not misrepresent the argument (and if it does, I may amend what now follows, as there is no point arguing against a contention which is not being advanced).

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In favour of the claim, one has to concede that there was no point where anyone said expressly: “this is the decision for the purposes of Article 50(1)”. No doubt this was considered by government lawyers but either they advised against it or their advice was not followed.

And no doubt, those studying constitutional and administrative law will be invited in essays to locate the decision for the purposes of Article 50(1). On any view, it will long be a fascinating question for the academic lawyer.

But my view is that the claim rests on a misunderstanding of Article 50(1). And it is also my view that there has been a decision in accordance with the UK’s constitutional requirements.

(These are only my views, and may well be wrong; and the correct legal position on this will anyway be what a court says it is, not what I think it is. That is how law works.)

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Article 50(1) provides that the decision has to be made in accordance with a member state’s own constitutional requirements.

This means that the EU’s courts will now treat it as a question of UK law. It will not be for the EU, or any of its institutions, to gainsay what is a constitutional requirement. That will be a matter of domestic law.

So what is, in respect of the UK, a “constitutional requirement”?

What is certain is that there is no formal and express list of constitutional requirements. There is not a “Constitutional Requirements Act” or similar legal instrument with a process to be followed.

Constitutional requirements is a vague term, and this is part of the reason why I think the Article 50 challenge is a weak case. Article 50(1) is not precise enough. Many things could fit the bill.

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But even if Article 50(1) was sufficiently precise, my view is that there has been a decision in accordance with the UK’s constitutional requirements.

First, there was a referendum. This referendum was under a special statute, the European Union Referendum Act 2015, which was dedicated to asking the voters a specific (and carefully worded) question.

Or course, the referendum was advisory and not mandatory. (No doubt people are scrolling down to leave a comment to that effect already.) For what it is worth, I was one of the first to point out in the mainstream media – before the referendum took place – that the referendum was not legally binding.

But what it did mean is that Parliament (in a parliamentary system) had expressly legislated to refer the question to the electors. Both Parliament and the electors had been engaged.

And the electors voted, in this dedicated referendum under special primary legislation, by a majority that they wanted the UK to leave. This in turn created a political (if not a legal) mandate.

Second, there was litigation, contested by the government, which went all the way to the Supreme Court on how the notification should be made – whether further parliamentary approval was required or not.

“122. What form such legislation should take is entirely a matter for Parliament. But, in the light of a point made in oral argument, it is right to add that the fact that Parliament may decide to content itself with a very brief statute is nothing to the point. There is no equivalence between the constitutional importance of a statute, or any other document, and its length or complexity. A notice under article 50(2) could no doubt be very short indeed, but that would not undermine its momentous significance. The essential point is that, if, as we consider, what would otherwise be a prerogative act would result in a change in domestic law, the act can only lawfully be carried out with the sanction of primary legislation enacted by the Queen in Parliament.”

Note that the Supreme Court here sticks to what is needed under Article 50(2). The judgment is silent on what the Article 50(1) decision is. It keeps to the far more concrete question of how the notification is to be given.

Third, there is then another primary statute, which is heavily debated in both Houses of Parliament, which expressly provides that the prime minister can make the Article 50(2) notification.

The short title of the statute is:

“An Act to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.”

One would think that Parliament conferring power on the prime minister to make the Article 50(2) decision means that Parliament accepts that the prior Article 50(1) decision has been made.

The Act has one operative section:

“1. Power to notify withdrawal from the EU(1)The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.(2)This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.”

Section 1(2) indicates that this Act cannot be repealed implicitly or by accident, that the courts should treat it as a constitutional statute.

The prime minister then makes the notification on 29th March 2017.

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So what do we have?

What we have is a process where the voters have been asked a specific question under dedicated primary legislation, where the Supreme Court has held that a second dedicated statute is required for the notification to be made, where Parliament has passed a dedicated statute in accordance with the Supreme Court’s judgment to confer a power on the executive, and that the executive exercised that power.

Parliament, Voters, Supreme Court, Parliament again, Prime Minister.

Each of these have been engaged.

The Supreme Court checked the government. The government required parliamentary approval.

The “decision” under Article 50 is difficult to locate but each major element of the UK constitution (other than the devolved powers, which the Supreme Court unanimously held did not have any formal role in this decision) has been involved.

Given the vague scope of Article 50(1), there can be no serious doubt that two key constitutional requirements of the UK – that the executive is answerable to parliament and the courts, and that primary legislation is required for constitutional decisions – have been met.

There is no one neat action which explicitly ticks the box “constitutional requirement”.

But for a specific question to be referred to the electorate by primary and dedicated legislation, which is then answered, and for the courts to insist that a further primary and dedicated legislation be passed before that answer is notified, looks like a decision to me, and one taken collectively by voters, Parliament, the Courts and the executive.

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But even if I am wrong (which I may well be) and the Courts now hold that there was not a decision under Article 50(1) then where does that get us?

Not very far: for the problem could be quickly cured by primary legislation rushed through a Parliament where the majority were elected in 2017 on manifesto promises to implement the referendum decision. And even if that legislation could not be made retrospective, it would only delay Brexit not extinguish it.

So even if the claim somehow succeeds, the victory would be brief.

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The Courts have already held what was required for the Article 50(2) notifictaion to be made, and this has been complied with.

There may be ways to stop Brexit. But those ways are now political, and not by litigation. And that is how it should be.

UPDATE – 9th April 2018, 9.08am

The Article 50 challenge campaign has responded.

It’s a scrupulously fair article @davidallengreen — we will reply, and want to share our papers. But it’s going to take us a moment to do so if that’s ok. Thank you again for you post about us.